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2016 SESSION
16104435DBe it enacted by the General Assembly of Virginia:
1. That § 8.01-15.2 of the Code of Virginia is amended and reenacted as follows:
§ 8.01-15.2. Servicemembers Civil Relief Act; default judgment; appointment of counsel.
A. Notwithstanding the provisions of § 8.01-428, in any civil
action or proceeding in which the defendant does not make an appearance, the
court shall not enter a judgment by default until the plaintiff files with the
court an affidavit (i) stating whether or not the defendant is in military
service and showing necessary facts to support the affidavit; or (ii) if the
plaintiff is unable to determine whether or not the defendant is in military
service, stating that the plaintiff is unable to determine whether or not the
defendant is in military service. Subject to the provisions of § 8.01-3, the
Supreme Court shall prescribe the form of such affidavit, or the requirement
for an affidavit may be satisfied by a written statement, declaration,
verification or certificate, subscribed and certified or declared to be true
under penalty of perjury. Any judgment by default entered by any court in any
civil action or proceeding in violation of Article 2 Title II of
the Servicemembers Civil Relief Act (50 U.S.C. app. § 527 521 et
seq.) may be set aside as provided by the Act. Failure to file an affidavit
shall not constitute grounds to set aside an otherwise valid default judgment
against a defendant who was not, at the time of service of process or entry of
default judgment, a servicemember for the purposes of as defined in
50 U.S.C. app. § 502 511.
B. Where appointment of counsel is required pursuant to 50
U.S.C. app. § 521 or 522 or another section of the Servicemembers Civil
Relief Act, the court may assess attorneys' reasonable attorney
fees and costs against any party as the court deems appropriate, including a
party aggrieved by a violation of the Act, and shall direct in its order
which of the parties to the case shall pay such fees and costs. Such fees and
costs shall not be assessed against the Commonwealth unless it is the party
that obtains the judgment.
C. The appointed counsel may issue a subpoena duces tecum for all discoverable electronic and print files, records, documents, and memoranda regarding the transactional basis for the suit. If requested in the subpoena, the plaintiff shall also deliver all documents or information concerning the location of the servicemember.
D. Counsel appointed pursuant to the Servicemembers Civil Relief Act shall not be selected by the plaintiff or have any affiliation with the plaintiff.